Council threatens academic freedom with “transformative constitutionalism”
The Council on Higher Education (CHE) has completed its investigation into and report on the state of the Bachelor of Laws (LL.B.) degree at South African universities. It makes valid points throughout on matters such as a lack of teaching critical thinking skills, but hidden in its hundred pages is a concerning potential threat to academic freedom. The CHE wants students and faculty at universities to “internalise” so-called “transformative constitutionalism” into their curricula, their teaching, and their “socialisation activities”. This is because transformative constitutionalism, the CHE asserts, is a “foundational principle in modern South African jurisprudence”. The CHE wants a “detailed plan” from all law faculties on how they will achieve this.
This is far from the only problem in the CHE report. The report also makes recommendations for the “decolonisation” and “Africanisation” of law curricula – a nebulous idea that could prove disastrous unless it is kept within elective courses, or reduced to a far more specific form. The report also calls into question the extent to which there is racial demographic representivity among university faculty and students, in the name of “social sensitivity”. The CHE requires all law faculties to use “all means at their disposal” to improve their “racial diversity”.
Clearly, the only real diversity that is non-arbitrary, that is, diversity of ideas, is rejected, in favour of ideological conformity to the notion of transformative constitutionalism, while the irrelevant diversity of race is placed front and centre.
In the South African context, the notion of transformative constitutionalism was first introduced by the American legal academic, Karl Klare, in a 1998 articlein the South African Journal on Human Rights. He defines it as “a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction”. This includes enforcement of these egalitarian values within the private sector: The workplace and the family.
Transformative constitutionalism is the basis for such controversial Constitutional Court decisions as Agri SA v Minister for Minerals and Energy, in which the court endorsed the expropriation without compensation of privately-owned minerals; SAPS v Barnard, where the court decided that affirmative action on racial grounds is a legitimate measure to achieve equality; and the truly bizarre AfriForum v UFS case, wherein Chief Justice Mogoeng said that retaining Afrikaans as a major medium of instruction at the University of the Free State (UFS) is not “reasonably practicable” (the constitutional standard) because such retention “poisons” race relations.